Yunus vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Rajeev Mishra, Advocate holding brief of Mr. Sonia Mishra, learned counsel for the appellant and Ms. Ruhi Siddiqui, learned A.G.A. for the State were heard and lower court record was perused.

Under challenge in this appeal is the judgment and order dated 17.3.2008 passed by learned Additional Sessions Judge/Special Judge E.C. Act Hardoi in Sessions Trial No. 297 of 2003 arising out of Case Crime No. 214 of 2002, Police Station Mallawan, District Hardoi whereby present appellant Mohammad Yunus was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 5,000/- with default stipulation of one year additional rigorous imprisonment. However, he was acquitted for the charges under Section 504 and 506 I.P.C.

In brief the case of the prosecution was that complainant Mohd. Ishak moved an application to S.P. Hardoi on 28.6.2002 alleging therein that his father Yusuf had died about eight months ago. After his death entire ancestral property was grabbed by appellant Yunus. The appellant, Kamaruddin and Ishtiyak were real brothers. Complainant and his other brothers were living in Bombay to earn their livelihood. Because of the shortage of work, they came back to their village on 1.6.2002. Appellant Yunus, who happens to be the real brother of the complainant and deceased and his son Shanu demanded money from them to purchase fertilizers for the crop on 21.6.2002. The complainant side replied that when they are not sharing the agricultural produce then why they should share the expenses. On this, appellant Yunus and his family members hurled abuses and also extended threats to the complainant side. On 22.6.2002 at about 10:00 a.m. brother of complainant, namely, Kamaruddin (deceased) was sitting on his door then appellant Yunus armed with Tamancha and co-accused Shanu armed with lathi reached there and again demanded money for fertilizer. When these persons declined to give them money then Yunus took out country made pistol and fired, which did not hit any one thereafter complainant and his brother Kamaruddin ran to save themselves then co-accused Shanu with the help of lathi obstructed them and appellant Yunus opened fire at Kamaruddin due to which, he fell down. Thereafter Yusuf and Shanu ran away from the place of occurrence. This incident was witnessed by Ramjaan, Mohd. Ishtiyak and they had challenged the accused persons. Thereafter the complainant and his family members took Kamaruddin in injured condition to Bangarmau Hospital where he died. Thereafter the doctor sent an information of his death to the Police Station Bangarmau. On the basis of the said information, inquest proceedings and postmortem were conducted. Inspite of that no case was registered by the police. The complainant made several efforts to lodge the F.I.R. but his F.I.R. was not registered. Then the complainant moved an application to S.P. Hardoi and under the orders of the higher authorities, F.I.R. of this case was registered on 19.7.2002 at 10:00 a.m.

Co-accused Shanu was declared juvenile during trial, accordingly, his case was separated and was sent for trial before the appropriate Juvenile Justice Board.

On the information received from the hospital through ward boy by Shri Ram of C.H.C. Bangarmau, the inquest proceedings were conducted on 22.6.2002. The information was received at 11:15 a.m. and inquest proceedings started from 12:30 hours and concluded at 13:30 hours. It was mentioned in the inquest proceedings that In the opinion of Panch witnesses, the cause of death was the injury sustained on the chest of the deceased and they opined that the postmortem be conducted. After completing the necessary formalities, the dead body was sent for postmortem, which was conducted on 22.6.2002 at 5:20 p.m. According to the postmortem report, the deceased died on 22.6.2002 at 11:15 a.m. And following ante mortem injuries were reported by the doctor:--

"(i) Wound of entry 2.5 c.m. x 2 c.m. on front of chest 3 c.m. Above and at 2 O''clock position from left nipple. Blackening present around the wound.

(ii) Wound of exit on left side of chest 1.5 c.m. x 1.5 c.m. of inferior angle of left scapula."

In the opinion of doctor, the cause of death was shock and haemorrhage as a result of ante mortem firearm injuries.

After registration of the case, investigation proceeded and place of occurrence was inspected. After completing the investigation, charge sheet was filed against both the named accused persons.

The case of the defence was of their false implication. The accused appellant has stated that a false FIR was lodged against him.

In order to prove its case, the prosecution has examined, PW-1 Ishak complainant of this case and PW-2 Ramjaan as eyewitness of this incident. PW-3 S.O. Harpal Singh is the Investigating Officer of this case, who has proved the chik report and G.D. of this case. PW-4 Dr. Rajesh Kumar Agarwal, who had conducted postmortem on the body of the deceased. PW-5 Constable Syed Imran Hussain, who had conducted inquest proceedings. PW-6 Iliyaz Hyder Zaidi, Dental Hygienist and Pharmacist who has proved emergency registered of C.H.C., Bangarmau wherein at Sl. No. 545/02 at 11:05 a.m. there was an entry of the deceased.

No evidence in defence was adduced on behalf of the the appellant.

As DW-1 Wafati was examined but he was examined on the point of juvenility of co-accused Shanu, whose case has been separated. So his evidence is irrelevant for the purpose of the instant appeal.

After appreciating the evidence available on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant was that in this case, F.I.R. was lodged after a considerable delay of about 27 days, which makes the case doubtful. Apart from it, the evidence of eyewitnesses was not wholly reliable. He has also argued that according to the case of the prosecution, the first fire did not hit any body. While Kamaruddin (deceased) was running away then the second fire was shot by the appellant, so the shot must have hit on his back and not on the chest. Therefore, this makes the evidence of eyewitnesses unreliable and on the strength of this submission, it is argued that case of the prosecution was not proved beyond reasonable doubt and the trial court has committed illegality in convicting the appellant. It is further submitted that the incident has taken place on the spur of moment so the offence, if any, committed by the appellant would not travel beyond the purview of the Section 304 Part (I) I.P.C. He has further submitted that no blood stained earth and plain earth was taken into custody from the place of occurrence, therefore, the place of occurrence was not established.

Learned A.G.A. has submitted that in the instant case, the deceased was immediately taken to the hospital and after his death on that very day, an information was sent to the police by hospital authorities. It was a case of firing on the chest and causing death. The police conducted inquest and send the dead body for postmortem but inspite of that no case was registered by the police. Learned A.G.A. has further argued that the complainant has stated in his cross examination that police of the concerned police station was bribed and therefore, they deliberately avoided to register this case and it was only under the orders of the S.P. Hardoi, the case was registered and investigation proceeded. In the investigation, the case was found to be true. The prosecution has proved its case beyond reasonable doubt. The deceased and the appellant were real brothers. PW-1 complainant Ishak is also a real brother of the deceased and also of the appellant. He has supported the case of the prosecution. PW-1 Ramjaan has also given an eyewitness account of this incident and the evidence of two eyewitnesses stands fully corroborated by the medical evidence and there is no medical conflict in the instant case. The trial court has considered all the aspects of the matter and by a reasoned judgment has convicted the appellant. The judgment of the trial court needs no interference.

The first point to be considered in the instant case is the delay in the F.I.R. According to the case of the prosecution, the incident of this case is alleged to have taken place on 22.6.2002 at 10:00 a.m. The F.I.R. of this case was lodged at the police station on 19.7.2002 at 10:00 a.m. It is an admitted fact that injured Kamaruddin was taken immediately to C.H.C. Bangarmau where he was declared dead because of the firearm injury on his chest and an information to this effect was sent to the police station concerned by the hospital authorities and on the basis of this information, the inquest proceedings were conducted wherein it was specifically mentioned that the death has been caused due to firearm injury on the chest. After inquest proceedings, the dead body was sent for postmortem and allegation of causing murder by fire stood established by the postmortem report but inspite of that the police made absolutely no effort to register the case or to contact the complainant or his family members to know as to how, the person died. The complainant in his evidence has stated that he several times visited the police station but his case was not registered. He was asked to wait till the postmortem report is received. Even after receiving the postmortem report, the case was not registered. The complainant PW-1 Ishak has come with a specific statement in his cross examination that the police of the police station concerned was bribed. The circumstances which stands proved, lead to the only inference that the police deliberately avoided to register the case whatever the reason may be for that and it was only under the orders of the S.P. Hardoi, the case was registered. Admittedly in this case, there is no dispute to the fact situation that the case was registered after a considerable delay of 27 days.

Law is settled on the point that even if the first information report is delayed and delay remains unexplained or unsatisfactory explanation is furnished even then the same cannot be made the sole basis to discard the entire prosecution case but in that circumstances the Court is obliged to scrutinize the prosecution case with extra care and caution. Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of Kanhaiya Lal and Others v. State of Rajasthan reported in , 2013 (5) SCC 655, wherein Hon''ble the Apex Court has held as under:--

"12. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand reported in [, JT 2001 (5) SC 169], wherein a three-Judge Bench of this Court has expressed thus: - "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

In Ramdas and others v. State of Maharashtra reported in [, 2007 (2) SCC 170, this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution."

Therefore, in the instant case, the delay in lodging the F.I.R. does not adversely affect the case of the prosecution. PW-1 complainant Ishak in his evidence has fully supported the case of the prosecution and has given the details of the incident. In his cross-examination, he has furnished a very detailed narration of the incident. He has stated that at the time of the first fire, he was in his house. The case of the prosecution was that the first fire was shot at the house and thereafter the complainant side and Kamaruddin ran and according to the site plan at place ''C'' on the Khadanza Road culvert, the second fire was shot on Kamaruddin (deceased) by the appellant Yusuf which caused the death. At place ''C'' the deceased was stopped by co-accused Shanu (son of the appellant) with the help of lathi and thereafter appellant Yunus fired shot which hit on the chest. Similar statement was given by PW-2 Ramjaan. Both these witnesses have stated that the fire was shot by appellant Yunus from a distance of two-four paces on the chest of the deceased and at that time he was in front of Kamaruddin (deceased). The evidence of these two witnesses has been challenged on the ground that PW-1 complainant Ishak, happens to be the real brother of the deceased and PW-2 Ramjaan, happens to be the real uncle of the deceased, thus they are related witnesses. But in the facts of the instant case, appellant Yunus is also similarly related to these witnesses with the same close relation.

Law is settled on the point that the evidence of a related witness cannot be discarded solely on this score. Hon''ble Apex Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in , (2012) 10 SCC pg 433 had held in paragraph No. 34 as under:--

"The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar V. State of Punjab, , (2003) 11 SCC 367, Brathi v State of Punjab , (1991) 1 SCC 519 and Alagupandi v State of T.N. , (2012) 10 SCC 451."

In a recent judgment in the case of Gurjit Singh v State of Haryana reported in , (2015) 4 SCC 380 Hon''ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative.

In the instant case, two eyewitnesses i.e. complainant PW-1 Ishak and PW-2 Ramjaan are most natural witnesses as the incident has started from their house, therefore, inmates of the house are the most natural witnesses.

Learned counsel for the appellant has drawn our attention towards some minor contradictions that occurred in the evidence of complainant PW-1 Ishak. He was inside the house at the time of first fire while according to the evidence of PW-2 Ramjaan, he was present at the door of the house. But this is such a minor contradiction and particularly in the facts of the instant case, the first fire did not hit the deceased and it hit only on the door of the house. The Investigating Officer of this case has confirmed this fact in his cross-examination that the mark of fire was found on the door of the house. No contradiction of PW-1 was put to this witness as is required under the provisions of the Indian Evidence Act.

Both the witnesses have fully supported the case of the prosecution and have assigned the specific role of firing to the present appellant Yunus, who happens to be the real brother of the complainant and also of the deceased. PW-2 Ramjaan is real uncle of the deceased and the appellant. The appellant could not furnish any reason for his false implication. No evidence in defence could be produced regarding the enmity. It is unbelievable that the real brother and real uncle of the deceased would falsely implicate their own close relative in the murder of his own brother/nephew sparing the real assailant. In the facts of the instant case, the presence of PW-1 Ishak is also established by the fact that after the incident, he immediately took his brother in injured condition to the hospital where he was admitted at 11:00 a.m. The deceased was admitted by PW-1 complainant Ishak and on the papers proved by PW-6 regarding his admission in the hospital, his signatures are present on Ex. Ka-13. Learned counsel for the appellant on the basis of the averments of the F.I.R., has argued that the fire was shot while Kamaruddin (deceased) was running but this argument is misconceived because it was the specific case of the prosecution that Kamaruddin was obstructed by co-accused Shanu with the help of lathi and thereafter appellant Yunus reached there and fired on the deceased. None of the two witnesses of facts have stated that the fire was shot by appellant Yusuf while the deceased was running and that too from the back side. Both the witnesses have specifically stated that the firing was shot from a distance of about 2-4 paces on the chest of the deceased by appellant Yunus. Therefore, this submission of learned counsel for the appellant is not supported by the evidence on record. Blackening was found in the wound and the distance from which the witnesses saw that the fire was shot, it was very natural that the blackening would have been caused around the wound. A person firing from a distance of 2-4 paces would, for the purpose of firing, stretch his arm towards the deceased and thereafter the fire shall be shot. So the firearm would come very close to the deceased at the time of the firing which would result into the blackening. PW-1 complainant Ishak has also stated that because of the noise of the fire, he became hard of hearing and this point has nowhere been challenged and this fact also established his presence at the seen of occurrence.

Learned counsel for the appellant has argued that in the inquest proceedings, Ishtiyaq, the other brother of the deceased was also a Panch witness but name of the accused persons and the weapon with which the fire was shot were not mentioned in the inquest report, which creates doubt regarding the prosecution story. But we are not the least impressed with this argument.

As stated earlier, the police has not deliberately registered the case and was avoiding to register this case. Thus the police was siding the accused persons inspite of the fact that a murder has been committed by firing on the deceased on his chest in broad day light. But in spite of that the police made absolutely no effort to register and investigate the case. The object of inquest proceedings is very limited. It is only with regard to find out whether death has been caused in suspicion circumstance. Therefore, any omission or any mistake in the inquest proceedings would not adversely affect the case of the prosecution and the case of the prosecution has to be considered on the basis of the substantial evidence recorded during trial. On this point reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Brahm Swaroop and another v. State of Uttar Pradesh reported in , (2011) 6 SCC 288 has observed in paragraph No. 9 and 10 as under:--

"9. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''Cr.P.C'') is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 Cr.PC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned.

Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses can not be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilized for contradicting the witnesses of inquest. (See Pedda Narayana and Ors. v. State of Andhra Pradesh , 1975 (4) SCC 153; Khujji v. State of Madhya Pradesh , (1991) 3 SCC 627; George and Ors. v. State of Kerala and Anr. , (1998) 4 SCC 605; Shaikh Ayub v. State of Maharashtra , (1998) 9 SCC 521; Suresh Rai v. State of Bihar , (2000) 4 SCC 84; Amar Singh v. Balwinder Singh and Ors. , (2003) 2 SCC 518; Radha Mohan Singh alias Lal Sahab and Ors. v. State of Uttar Pradesh , (2006) 2 SCC 450; and Aqeel Ahmad v. State of Uttar Pradesh , (2008) 16 SCC 372).

(underlined by us)

Thus this ground of attack has also no substance.

It has also been argued by learned counsel for the appellant that no independent witness has been examined and only related witnesses have been examined. Law is settled on the point that it is nowhere the duty of the prosecution to examine all the witnesses because in the present day-world, people avoid to become a witness as they consider a crime as a civil dispute between the two fraction. This apathy of the public is everywhere whether in the cities or in the rural areas. So simply because the other independent persons have avoided to appear as witness to support the case of the prosecution then on this score the otherwise reliable evidence of the prosecution witnesses who have come forward for the cause of justice cannot be discarded. In the the case of Jarnail Singh v. State of Punjab reported in , 2011 Cr.L.J. 1738 Hon''ble the Apex Court has observed that the reluctance on the part of the villagers is neither strange nor unbelievable. Generally people belonging to the same village would not unnecessarily want to create bad relations or enmity.

The argument of learned counsel for the appellant that place of incident does not stand established because no bloodstained earth was recovered from the place of occurrence. But this argument of learned counsel for the appellant is misconceived because in the instant case, the incident had taken place in an inhabited area and F.I.R. of this case was lodged after 27 days of the occurrence. So in such a long gap of 27 days, the bloodstains, must have vanished from the place of occurrence because of the movement of the public. So this argument has also no force.

Learned counsel for the appellant has also argued that in the instant case, if the court reaches the conclusion that offence has been committed by the appellant then the said offence would not travel beyond the purview of Section 304 Part (I) I.P.C. We are not impressed with this submission because in the facts of the instant case, the appellant had threatened the deceased on 21.6.2002. Subsequently on the next day at about 10:00 p.m., he came armed with country made pistol at the house of the deceased and again made a demand of money. This demand of money was only a condition precedent to make payment or to face consequence as threatened by the appellant on 21.06.2002. On denial of the deceased he immediately opened first fire, which hit on the door of the house and thereafter he chased the deceased and the deceased was obstructed by his son Shanu (non appellant), he repeated the fire with his country made pistol with a close range on his chest and this conduct of the appellant gives rise to the only conclusion that he had gone to the place of occurrence armed with a weapon and on the denial of the deceased to make payment for the fertilizers, he opened fire on him. So he had come with the intention to kill because when the first fire did not hit the deceased, then he chased him and caused his death by firing on his chest. Firing on a person from a close range that too on his chest give rises to the only intention of murder. There was no sudden provocation from the complainant side. On this point, reference may be made to the latest pronouncement of Hon''ble the Apex Court in the case of Abdul Waheed v. State of Uttar Pradesh reported in , JT 2015 (9) 444 wherein Hon''ble the Apex Court has observed in paragraph No. 14 as under:--

"14.................. The appellant and the accused party went to chabutra of Abbas Khan armed with pistol, guns and lathis which shows the intention of the appellant to commit the murder. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. Therefore, if a stab with a knife or dagger, aimed at an arm or a leg, severs an artery and the injured man dies as a result, it may be reasonable to argue that the offence is not one of culpable homicide and that the assailant can only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon. The case in hand is quite different. When gun is used and the person who fires the gun must be presumed to have knowledge and intention that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death and the offence is clearly murder. Having regard to the enmity and the weapon used, the courts below rightly held that the appellant-accused was guilty of committing the murder of Abbas Khan."

(underlined by us)

In view of the discussion made above, we are of the considered view that not registering the case was a deliberate act of the police to favour the accused persons whatever may be the reason therefor. The fact that the police was bribed by the appellant has emerged in the cross-examination of the appellant himself.

In our considered opinion, the evidence of PW-1 complainant Ishak and PW-2 Ramjaan falls within the purview of wholly reliable. The same stands fully corroborated by the medical evidence. Therefore, in our considered view, the prosecution was successful in proving its case beyond reasonable doubt. Learned trial court has not committed any illegality or irregularity in relying upon the case of the prosecution and accordingly convicting the appellant.

In view of the discussion made above, this appeal deserves to be dismissed and is hereby dismissed. The judgment of the trial court is affirmed. The appellant is in jail. He shall serve out the sentence awarded by the trial court.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.